CASE RESULTS

CONTACT US NOW...

If you have been arrested, don’t delay. You have only 10 days to save your license. Contact us today for a FREE consultation, and find out about all of your options, and all of your rights, and how to protect yourself.

Monthly Archives: September 2017

What if the police used Entrapment in my DUI?

Often, people feel that their DUI involved entrapment by the police. In criminal law, entrapment exists where the actions of a law enforcement officer make a person commit a crime that they would have otherwise been unlikely to commit.

What if the police used entrapment in my DUI? Entrapment is defined by one source as “the conception and planning of a crime by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer.” Translated from legalese, that means “you wouldn’t have done it if the police hadn’t set you up.”

The most common example in a DUI case is where an officer suspects that you were driving under the influence of alcohol or drugs, but you were no longer driving your car, or your car was already stopped. The officer then asks you to move your car, and since that is “driving”, they then arrest you immediately after doing so. Entrapment is an area that law enforcement does not like to talk about, as it implies police corruption. However, there is evidence that police officers have attempted to “trap” drivers in exactly this way in order to achieve a conviction.

What is used to prove Entrapment in a DUI?

The jury instruction in California instructs that it is the defendant’s burden to show entrapment. The instruction read in trial states as follows:

“Entrapment is a defense. The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard from proof beyond a reasonable doubt. To meet this burden, the defendant must prove that it is more likely than not that (he/she) was entrapped.

A person is entrapped if a law enforcement officer [or (his/her) agent] engaged in conduct that would cause a normally law-abiding person to commit the crime. “

In one case in California, People v. McIntire, the court mentioned that third parties that are asked by the police to have the defendant do the illegal act can also constitute entrapment, stating:

“The purposes of the entrapment defense can be fulfilled only if it is understood that one can act as the agent of a law enforcement official without realizing the identity of his principal; the unwitting agent, though he may not appreciate the true nature of his role, is nonetheless being manipulated as the officer’s tool in a plan to foster a crime and entrap its perpetrator. [Citing another case}, ‘The function of … enforcement officials is to investigate, not instigate, crime; to discover, not to promote, crime.’”

What if the police used Entrapment in my DUI? Usually, the defense of entrapment doesn’t mix well with the law in DUI cases, because the law considers a defendant voluntarily consuming alcohol (or drugs, for driving under the influence of drugs (DUID) cases), to be a contributing factor of the crime of driving under the influence. There is a defense of involuntary intoxication in a DUI case where a person was dosed with drugs or alcohol without their knowledge, however.

The courts consider that defendants are free to say “no” when asked to drive a vehicle under the influence, even if they may not know that fact. Officers who use violence or threats of violence to make the defendant drive are a different situation since in that case, the driver would not feel free to walk away. And driving under the influence because of a legal necessity to avoid a crime is recognized as a defense.

Contact us for questions. Orange County DUI AttorneyRobert Miller is experienced with DUI defenses, and the court system in Orange County, and can ensure you receive the best possible representation if you have been charged.

Should I go to AA to help my DUI case?

Clients often ask if they should go to alcoholics anonymous, or AA sessions, before their court date for their DUI, asking, “Should I go to AA to help my DUI case?”

Unfortunately, there is no “one size fits all” answer to that question. On this page, we will discuss how AA may, or may not, help you with your DUI case, along with the recommendations from our Orange County DUI Attorneys.

AA uses the “Twelve Steps” — which are development steps, along with social interaction, support, and communication with other members, including “sponsors”.

AA has been wildly successful, and it’s unlikely that you haven’t heard of it somewhere. Many similar programs like Narcotics Anonymous also use the Twelve Steps as part of their programs, many of which are based upon AA’s structure.

Problems with AA being faith-based or requiring religion

Some have greatly criticized AA for being faith-based. For example, the second and third, fifth and sixth of the twelve steps are as follows:

“Four: We came to believe that a Power greater than ourselves could restore us to sanity.

Five: We made a decision to turn our will and our lives over to the care of God as we understood Him.

Six: Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.

Seven: Were entirely ready to have God remove all these defects of character.”

The fact that AA requires belief in a higher power has led some to conclude that courts have a first amendment problem in recommending it since that might violate the 1st amendment prohibition on the endorsement of an official religion. Judges get around that by requiring AA only as a bail requirement and allowing conditions of “any self-help classes”, which opens it to other options that are not strictly faith-based.

What alternatives are there to AA?

Other than AA, there are the following options (among others), that are alternatives to alcoholics anonymous:

Life Ring (a secular group which is popular with our clients, because they have online meetings)

Rational Recovery

Celebrate Recovery (faith-based and usually through a member church)

Secular Organizations for Sobriety (SOS)

SMART Recovery

Women for Sobriety

What takes place in AA meetings?

AA has two types of meetings – closed, and open. In open meetings, which are, as the name implies, open to everyone, according to one account, you can find the following:

Initial announcements

The reading of the 12 Steps and 12 Traditions

One alcoholic will come up to the front and share his or her story of strength, hope, and recovery.

On the other hand, closed meetings differ in, that, in addition, to the above, you will find (after the above portions of the meeting), a group reading or discussion based on one of the steps or traditions, or a topic related to recovery.

How can Alcoholics Anonymous be helpful in a DUI case?

AA can show commitment to sobriety. By being around others that are able to support and help you in the path away from alcohol, that puts you on the road to recovery, you can help assuage the fears of the court, the prosecutor, and your defense attorney that you may relapse, and face another crime.

What is a DUI lawyer’s recommendation regarding AA meetings?

As a firm of DUI lawyers in Orange County, having handled thousands of DUI cases in over 23 years of practice, we have seen many clients helped by AA and similar programs, and others that have not. Our recommendation is to be honest with yourself, and to get into AA or a more intensive program right away, if you feel you need to, or if you feel you have a problem. Should I go to AA to help my DUI case? Only you can make that decision for yourself. But if you decide you need help, AA can be an important first step, or for many an ongoing component of other support structures to keep you clean.

Where can I find AA meetings in Orange County, California?

Orange County has its own directory of all the AA meetings in the county. You can find it at: http://www.oc-aa.org/directory/meetings.asp

How can I discuss AA and how it can help in my case?

Contact us if you have questions about an Orange County DUI case, or if you need the help of our law firm. We can help answer questions for you about whether AA can help your DUI case. We are here to help you.

Orange County DUI Checkpoints September 15, 2017

Orange County police departments have announced DUI checkpoints and saturation patrols that are planned for this weekend. Here are the Orange County DUI Checkpoints September 15, 2017.

Remember that you should avoid the long waits and traffic tie-ups from DUI checkpoints, but also can avoid being arrested for DUI in Orange County at a DUI checkpoint by doing any one of the following:

“Cop here! DUI check points are not about catching drunk drivers. DUI checkpoints are a dog and pony show… their sole purpose is to be public events, that is why they must be announced ahead of time by law. It’s long been known in the law enforcement community that the best way to “fight” drunk driving is by saturation patrols, or, cars that do nothing but hunt/respond to drunk drivers. Feel free to make this as public as possible.”

According to California DUI case law, DUI checkpoints are legal in California, although they have to meet certain strict criteria, including advance publicity, which is how we find out about DUI checkpoints in Orange County.

The following are the DUI Checkpoints in Orange County announced for this weekend:

Anaheim DUI Checkpoint

One of the Orange County DUI Checkpoints is the Anaheim DUI Checkpoint, scheduled for September 15, 2017, starting at 8 pm and ending at 3 am, at Beach Boulevard, at Ball Road, in the City of Anaheim. See our Anaheim DUI Information, if you are curious for details on how Anaheim DUI cases are handled overall.

Orange County DUI Checkpoints, Sept 8-9 2017

Orange County law enforcement have a number of DUI checkpoints and saturation patrols that are planned for this weekend. Remember that you should avoid the long waits and traffic tie-ups from DUI checkpoints, but also can avoid being arrested for DUI in Orange County at a DUI checkpoint by doing any one of the following:

Effectiveness of Orange County DUI Checkpoints

The following are this weekend’s Orange County DUI Checkpoints, Sept 8-9 2017

DUI Checkpoint in Lake Forest

The OCSD issued a press release notifying us that the Orange County Sheriff’s DUI Enforcement Team will hold a DUI and Driver’s License Checkpoint this weekend to stop and arrest any alcohol and drug-impaired drivers as part of the department’s ongoing traffic safety campaign.

The checkpoint will be held at 7 p.m. on Friday, Sept. 8, to 3 a.m. Saturday, Sept. 9 within the city of Lake Forest. The location was not disclosed, but past locations were at Muirlands and Ridgecrest, or at El Toro Road and Cornelius Drive.

DUI Checkpoint in Rancho Santa Margarita

Rancho Santa Margarita DUI Information. The OCSD issued a press release notifying us that the Orange County Sheriff’s DUI Enforcement Team will hold a DUI and Driver’s License Checkpoint this weekend to stop and arrest any alcohol and drug-impaired drivers as part of the department’s ongoing traffic safety campaign.

The checkpoint will be held at 7 p.m. on Friday, Sept. 8, to 3 a.m. Saturday, Sept. 9 within the city of Rancho Santa Margarita. The location was not disclosed.

DUI Checkpoint in Placentia

Placentia DUI Information. The OCSD issued a press release notifying us that the Orange County Sheriff’s DUI Enforcement Team will hold a DUI and Driver’s License Checkpoint this weekend to stop and arrest any alcohol and drug-impaired drivers as part of the department’s ongoing traffic safety campaign.

The checkpoint will be held from 8 p.m. on Friday, Sept. 8, to 2 a.m. Saturday, Sept. 9 within the city of Placentia, on Yorba Linda Boulevard at Kraemer Boulevard.

According to California DUI caselaw, DUI checkpoints are legal in California, although they have to meet certain strict criteria, including advance publicity, which is how we find out about DUI checkpoints in Orange County.

The law states that: “A driver of a motor vehicle shall stop and submit to a sobriety checkpoint inspection conducted by a law enforcement agency when signs and displays are posted requiring that stop. ” (Vehicle Code 2814.2(a)).

Orange County DUI Checkpoints Labor Day Weekend, 2017

La Habra DUI Checkpoint

La Habra announced a La Habra DUI Checkpoint DUI checkpoint in their city on September 1st, 2017, from the hours of 7:00 pm. to 3:00 a.m.

Fullerton DUI Activity

Fullerton Police Department announced not a Fullerton DUI Checkpoint, but roving DUI patrols on 16 different nights looking to stop and arrest drivers who are impaired by alcohol and/or drugs and causing DUI in Fullerton or Fullerton DUI arrests. In addition to the roving patrols, the Fullerton Police Department Traffic Bureau will be conducting a DUI/Drivers License Checkpoint on Thursday, August 31, 2017, at an undisclosed location, between the hours of 8:30 PM and 2:20 AM.

Garden Grove DUI Activity

Garden Grove Police Department announced not a Garden Grove DUI Checkpoint, but roving DUI patrols who might be DUI or may be DUI in Garden Grove. In addition to the roving patrols, the Fullerton Police Department Traffic Bureau will be conducting a DUI/Drivers License Checkpoint on Thursday, August 31, 2017, at an undisclosed location, between the hours of 8:30 PM and 2:20 AM.

The location, time and duration of a checkpoint, and other regulations for operation of the checkpoint should be established (preferably in written form) by supervisors or other administrative personnel rather than the field officers implementing the checkpoint;

Advance warning must be made to the approaching motorist with signs, flares and other indications to warn of the impending stop in a safe manner and to provide notice of its official nature as a police checkpoint;

Press releases from Police Agencies exist to let people know about it. This leads to another reason why DUI checkpoints are a bad idea – those that plan ahead and are the most dangerous serial drunk drivers, or alcoholics, are the least likely to be caught in a DUI checkpoint for that reason.

Why are there Orange County DUI Checkpoints?

DUI Checkpoints are less effective than other means of removing drunk drivers from the road. Police officers even admit that. Although DUI checkpoints don’t work, police departments hope that they prevent people from driving with alcohol or drugs in the first place. The truth is that funding from grants from the California Office of Traffic Safety (OTS), MADD, and the Federal Government ensure DUI checkpoints are used first before other measures. It’s truly all about the money.

We found the helpful infographic above on the differences between a first and a second time DUI, from The Law Offices of Brian D. Sloan. As you can see, the differences between a first and a second time DUI can be dramatic.

Can you sue whoever sold you the alcohol that resulted in your DUI?

You may wonder whether or not a location that served the alcohol consumed by the defendant in a DUI can be sued. Like some handgun lawsuits, where families have sued those that sold the weapon used to cause injury, the theory is that if it were not for the serving of alcohol, the person would not have become intoxicated, and thus would not have become DUI. So can you sue whoever sold you the alcohol that resulted in your DUI? Are they liable? Let’s discuss that issue.

Dram Shop Acts and Liability for DUI.

In states other than California, some jurisdictions have adopted what is called a “Dram Shop Act”. A Dram Shop Act is a law that lets victims and the families of victims sue the bar or establishment that served alcohol to a drunken individual that subsequently injured someone in a drunken driving accident.

In those other states, alcohol infractions are regulated by the Department of Revenue, or the Beverage Control Bureau (here in California, alcohol licenses are granted by the California Alcohol Beverage Commission), who has the authority to revoke bars and bartenders of their licenses if they are found to be repeatedly over-serving. Those states hold servers or sellers of alcohol “strictly liable” for any outcomes from drinking under the law.

Liability for serving alcohol that leads to a DUI and California Law.

California does not have a Dram Shop Act. However, studies show that states that have a Dram Shop Act tend to rarely enforce this particular law. That may be in many cases due to resources, or due to the public or societal attitudes about the law. It has also been suggested that focusing on the servers, bureaus and commissions responsible for alcohol are a poor way to make sure that persons do not consume from a variety of sources, as each location can only control the amounts they serve.

In California, a bar, or restaurant, could possibly be sued if they failed to follow the law (for example, serving persons under 21), or were negligent in hiring, training, or avoiding foreseeable harm to others. Only Business & Professions Code §25602 in California, which protects persons under 21, places liability on the establishment that serves an obviously intoxicated underage drinks, who then, in turn, injures another.

Under California law, however, it is extremely difficult to find liability with the bartender or establishment that sold or served the liquor consumed. California case law states that the consumption of alcohol, not the serving of alcohol, is the primary factor in DUIs. The person’s judgment in deciding to consume alcohol in the first place puts personal responsibility on the driver, and the DMV’s rules regarding DUI, as well as the California State Criminal laws making driving above a .08% alcohol blood content, or while driving under the influence of alcohol or any other substance illegal, places that responsibility firmly on the person driving the vehicle.

So can you sue whoever sold you the alcohol that resulted in your DUI? As a matter of civil law, if you can find negligence in the failure of a restaurant, liquor store, or other establishments, to live up to a duty, there might be liability. There could also be a potential criminal liability for bartenders or others that spike drinks, as that is a crime in California, and would lead to the DUI defense of involuntary intoxication.

Contact us.

If you find yourself facing a DUI in Orange County, contact our firm. Our team of Orange County DUI Attorneys are experienced in handling cases in court and at the DMV and can help you plan a strategy for your case. Contact us today.

The future of breath test machines – drug testing

The future of breath test machines – drug testing: A few years ago, a new, and relatively crude device, which consisted of a modified breath alcohol testing machine, was tested to see if it could detect certain substances on the breath. A control group of 47 individuals, who had taken marijuana, cocaine, heroin, and methamphetamines less than 24 hours prior to the test, were tested to check the accuracy of the device. The test detected drugs successfully in 87% of the people tested.

The device required the suspect to breathe into a mouthpiece attached to a micro-particle filter. The microparticles in the breath were separated from the saliva and deposited onto a filter, which was then sealed and stored. The particles were then taken to a lab and tested using liquid chromatography and mass spectroscopy devices. Plans are underway to see if a portable test could be used roadside.

Police, and state and federal highway agencies, are concerned that drugged driving is on the rise, but is not being detected. As marijuana becomes legal in more and more states, the laws are changing to make sure that it is clear that driving under the influence of marijuana is still illegal.

A recent series of studies by the AAA Foundation for Traffic Safety found that DUI fatalities involving drivers who had used marijuana shortly before driving doubled in Washington State after it legalized usage of the drug. Other states have had variance in their statistics, but seem to have an increase after legalization. It seems clear that states need good methods to find drivers under the influence of marijuana that cause accidents which endanger others. The problem is that there’s no reliable and accepted method of measuring levels of marijuana in a driver’s system, other than a blood or urine test. There are also no agreed upon levels of impairment for marijuana, unlike alcohol.

Companies have been developing the equivalent of an alcohol breathalyzer for testing for motorists who are DUI for cannabis. Law enforcement officials have been relying on breathalyzer technology to estimate blood alcohol levels for decades, and the future of breath test machines – drug testing and not just alcohol testing. In addition, there’s a legal agreement to follow the federal government’s definition of what constitutes DUI; all 50 states accept the federal BAC of 0.08 percent or greater as the dividing line.

It isn’t easy when it comes to determining driving under the influence of drugs (DUID) involving marijuana. Police would need a roadside method of measuring levels of cannabis’s main active ingredient, tetrahydrocannabinol (THC), in a driver’s system. There are a few university researchers, and testing companies, all over the world, that are attempting to solve this challenge right now, and market devices for this purpose

But the problem of insufficient scientific research of what levels equal “under the influence” remains. There is no good way of determining what levels of THC in the bloodstream are dangerous, or even whether THC levels are an accurate metric to determine when someone is under the influence of marijuana.

THC Measurement in Drivers

States that have legalized marijuana are having difficulty with the fact that measuring a person’s THC is actually a poor indicator of intoxication. According to Thomas Marcotte, co-director of The Center for Medicinal Cannabis Research at the University of California, San Diego, THC gets stored in your fat cells, and isn’t water-soluble like alcohol. As a result, there isn’t a linear relationship between the amount of THC in the body and impairment.

We are often asked what the legal limit for marijuana is for DUI cases. California has no limit, but Colorado is one state that has a limit. They set the DUI level for cannabis intoxication as five nano-grams of THC per milliliter of blood. But a positive test for the presence of THC only shows that at some point —perhaps a week ago or longer— the person ingested marijuana. The test doesn’t measure the level of intoxication or impairment at all.

Researcher Margaret Haney, a neurobiologist at Columbia University, states that the amount of THC in the body also varies by whether or not the person used cannabis only occasionally (in which case the THC would leave the body quickly) or fairly regularly (in which case it would be stored longer term). The occasional smoker stopped for DUI, could actually be much more intoxicated than a regular user but would have much lower THC levels in their bloodstream.

There is also a difference between consuming cannabis or marijuana edibles, or smoking marijuana. Smokers almost always have higher levels in testing.

The AAA, a staunch opponent of DUI, has even admitted that THC levels aren’t effective in determining drivers’ intoxication. It evaluated the arrest records of more than 5,000 drivers arrested for DUI because of their THC levels. It found that

“There is no evidence from the data collected…that any objective threshold exists that established impairment, based on THC concentrations measured in specimens collected from cannabis-positive subjects placed under arrest for impaired driving…. When examining differences in performance in these parameters between subjects with high (>5 2 ng/mL) and low (<5 2 ng/mL) THC concentrations, minimal differences were found. There was no correlation between blood THC concentration and scores on the individual indicators [of intoxication], and performance on the indicators could not reliably assign a subject to the high or low blood THC categories.”

Marijuana breathalyzers

Law enforcement officers would welcome the development of a breathalyzer for marijuana. There are articles online featuring police officers who complaint about the fact that they don’t have this essential tool. But those officials also echo doubts about how accurate such tests could be because of the uncertainty over the effect of THC levels.

The future of breath test machines – drug testing problems. To get around that problem, the developers of breathalyzers for cannabis appear to be focusing on ways to detect the active presence of THC in the bloodstream, which they claim is a better indicator of intoxication.

Cannabix Technologies Inc., a company based in Vancouver, British Columbia, Canada, has been working to bring portable hand-held tools to market that could improve law enforcement’s ability to measure marijuana-impaired driving offenses.

The company has developed drug-testing devices that will detect THC using breath samples. But the company says that it is focused on “developing breath testing devices for detection of recent use of THC, in contrast to urine testing for THC metabolite that requires an invasive collection and reflects use days or even weeks earlier.” They define recent use as within two hours.

Cannabix has been partnering with the University of Florida to develop a THC breath detection device based upon high-field ion mobility and mass spectrometry. Their work is focusing on instant readings of THC through breath. Even they admit that the device only works when people have smoked marijuana, not when they have ingested it in other ways.

Oakland, California-based Hound Labs says that its proprietary technology can measure both smoked marijuana and edibles and can measure the presence of both alcohol and marijuana together. Hound Lab’s breathalyzer can also store breath samples for independent verification at a later date.

Both companies state that their technology will pinpoint those who have used marijuana recently. At the same time, its technology will ensure that unimpaired individuals who may have THC in their saliva or blood because of previous use aren’t wrongfully accused of impairment.

Hound states on their website that the correlation from THC to being “under the influence” shouldn’t stop their device from being used:

“[The] marijuana breathalyzer not only provides information that is immediately useful at the roadside, but also allows ongoing data collection to inform states on how much THC is too much to drive.”

Clinical trials started at the University of California, San Francisco, in May 2017, and the first data from those trials and testing are expected to be published late this year or early next year.

The future of breath test machines – drug testing in the future for DUI. The controversy over whether breath devices are accurate and effective for drug testing will certainly continue for much longer, as DUI defense attorneys for clients accused of marijuana DUI are likely to challenge the results of those breathalyzers and the use of THC as a measure of intoxication.

Seven ways that a DUI conviction can affect you

If you were unlucky enough to be arrested in Orange County, California, and were taken to the Orange County Central Jail in Santa Ana, you probably made the decision then and there to never go back.

And before you consider pleading guilty to any crime, think long and hard about the consequences of any criminal conviction, even if it is for a first-time DUI. Here are the seven ways that a DUI conviction can affect you, to think about in reference to your DUI case when considering how your DUI may affect you in the future.

1. A DUI can affect your ability to help others

Many charities, including Big Brothers and Big Sisters, Children’s Hospital of Orange County (CHOC), and foster care agencies, will run a criminal background check. Although everyone’s situation is different, they are typically reluctant to choose anyone that has a recent conviction or is on probation.

1. A DUI can affect your career. Your current job, or your intended career path, could be affected. California is an “at-will” employment state, which means that any employer can let you go for any reason, or for no reason at all, with the exception of discrimination, which is prohibited. If you are sent to jail, have to do community service, or are up for a job against others with a clean record, you may be let go, or not chosen for your dream job.

2. A DUI Can make it impossible for you to sign up for the military.

The military will not take someone on probation, period. You will need to have probation terminated early, or wait until probation expires, to be able to join the military.

3. A DUI can affect non-U.S. citizens.

Most misdemeanor DUIs won’t lead to deportation. However, a felony DUI, a drug-related DUI, or a series of DUI convictions could negatively affect your stay in the U.S. or your application for citizenship, if you are a green card holder or here on an immigration visa.

4. A DUI affects your future licenses.

Not only your future licenses, but a DUI can affect a state and federal license related to your career. Any criminal record can impact your ability to obtain certain professional licenses or can mean you may have a current license suspended. A career in medicine, finance, pharmacy tech, real estate, or mortgage work could be affected.

5. A DUI on your record can cause potential employers to not hire you.

Even if your conviction was for a misdemeanor DUI, it will show up on a criminal conviction. Even worse, if you lie on your application and the employer later finds out about it, it could lead to an automatic termination. When competing for jobs with persons without a DUI, you could be at a disadvantage.

6. A felony DUI affects your second amendment rights.

If convicted of a felony DUI, you cannot buy or possess a firearm. Under California law, any person convicted of felonies cannot possess firearms. While this doesn’t matter to some DUI defendants, to others this is a big deal.

7. A DUI can affect child custody.

If you are in the middle of a child custody battle, a recent DUI is going to be used against you to make you look like a bad parent. Your ex will use your DUI as leverage in court.

Contact Us Today

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.